Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS   Case Numbers: B28/13 & B97/13
	Judgment by   SHERIFF PRINCIPAL MHAIRI M STEPHEN   in appeals by   STEPHEN HOUSE, QPM, THE CHIEF CONSTABLE OF THE POLICE SERVICE OF SCOTLAND, Tulliallan Castle, Tulliallan, Alloa Pursuer and Appellant   against   D.J. R Defender and First Respondent   and   D. D. S. Defender and Second Respondent   ___________________________

 

Act: Sheldon, Advocate instructed by Messrs Morton Fraser, LLP

Alt: Frazer, Advocate, instructed by Messrs Haddon & Turnbull, Solicitors (for the first respondent)

Alt: McDonald, Advocate, instructed by Messrs Andrew Haddon & Crowe, Solicitors ( for the second respondent)

 

 

EDINBURGH, 23 August 2013

The Sheriff Principal, having resumed consideration of the cause, refuses the appeals and adheres to the sheriff's interlocutors of 27 June 2013; Appoints parties to be heard on the question of the expenses of the appeal procedure at 10.30am on 4 September 2013, within the Sheriff Principal's Appeal Court, 27 Chambers Street, Edinburgh.

 

(signed) Mhairi M Stephen

 

NOTE:

1.                The appellant in these summary applications is the Chief Constable of the Police Service of Scotland, Stephen House, QPM. The grounds of appeal are identical in both applications (B28/13 and B97/13). The respondents are D.J.R and D.D.S.

 

2.                Both respondents are defenders in other summary applications pending before the sheriff at Selkirk (and Peebles) at the instance of the appellant. These pending applications are the "main applications" in respect of the appellant's crave for inter alia a Sexual Offences Prevention Order (SOPO) and an interim sexual offences prevention order in terms of sections 104 and 109 of the Sexual Offences Act 2003 (Court References B48/13 & B2580/12 (B16/13) respectively). Neither respondent challenges the orders made by the learned sheriff at Selkirk on 27 June 2013 continuing the interim SOPOs granted earlier this year and continued repeatedly in the main applications. Neither respondent takes issue with the grant of an interim SOPO. Neither opposed the interim SOPO at the outset. They both have an expectation that they will be heard by the sheriff on any order to be made on the main applications and in this regard hearings have been fixed for September and October this year. Both respondents supported the reasoning of the sheriff.

 

3.                This appeal lies against the sheriff's dismissal of the appellant's applications made separate to but in furtherance of the main applications (B28/13 & B97/13). Summary application B28/13 brought by the appellant against DJR craved renewal of the interim SOPO granted by Selkirk Sheriff Court (in the main application) for a period of one year from 27 June 2013 to 26 June 2014 and by imposing a new prohibition.

 

4.                In the separate application in respect of DDS (B97/13) the appellant also craved renewal of an interim SOPO granted by a sheriff in Edinburgh on 22 January 2013 (in the main application) again for a period of one year as from 27 June 2013 and again with further prohibitions.

 

5.                In both cases the appellant avers that continuations of the interim SOPO from 7 February 2013 onwards were not competent renewals. In the application in respect of DDS the appellant avers "such continuations of the interim order are not competent under the 2003 Act. Section 112(1)(ea)(ii) of the 2003 provides that in the event the main application for a SOPO has been made, an application for an interim SOPO is made by application to a sheriff for the Sheriffdom of the sheriff to whom the main application was made by the person who made by application." In the application in respect of DJR the appellant avers "it is not competent to continue an interim SOPO by virtue of section 112(1)(f) of the 2003 Act which provides for the variation, renewal or discharge of an interim SOPO. In this action, the pursuer seeks renewal of the competent interim order which was granted on 1 March 2013 and expired on 4 April 2013".

 

6.                The appellant does not appeal the decision of the sheriff on 27 June 2013 to continue the interim SOPOs in the main applications against both respondents. This is noteworthy standing the averments to which I have referred above.

 

7.                The sheriff narrates in his note the procedure in these cases and specifically the procedure adopted on behalf of the appellant at the hearing before him on 27 June 2013. The appellant's agent lodged a minute of amendment in the main application whereupon the sheriff made an order for answers to the minute of amendment; assigned a rule 18.3 hearing and continued the interim SOPO previously granted but in the terms of the new amended crave with the interim SOPO to remain in place until the next calling of the case on 8 August. Furthermore, the appellant's agent's lodged the application which is the subject of the appeal. This summary application is against the same defender seeking renewal of the interim SOPO granted in the main application and that for a period of one year. The sheriff states:

"The granting of such orders is a serious matter which can have grave criminal consequences for the defender and having regard to (i) the terms of the order currently in force in the process before me (B48) (ii) the terms of the minute of amendment in that process and (iii) the live procedure in that process I accordingly dismissed the second application (B28/13) ex proprio motu."

 

It is against that decision that the appeal is marked. In the summary application relating to DDS. (B97/13) similar averments are made on behalf of the appellant relating to the purported continuations of the interim SOPO following 7 February 2013 and the new application seeks renewal of the interim SOPO granted in the main action by the sheriff in Edinburgh on 22 January 2013.

 

8.                This, accordingly, is the background and context to this appeal. However the appeal is not directed at the merits of the applications but rather involves the interpretation of the relevant parts of the Sexual Offences Act 2003 Part II. In particular sections 104 to 112 of that Act.

Statutory Provisions

9.                I was referred to the following statutory provisions:

"104 Sexual offences prevention orders: applications and grounds

(1) A court may make an order under this section in respect of a person ("the defendant") where any of subsections (2) to (4) applies to the defendant and -

(a)   where subsection (4) applies, it is satisfied that the defendant's behaviour since the appropriate date makes it necessary to make such an order, for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant;

(b)   in any other case, it is satisfied that it is necessary to make such an order, for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant."

 

"105 SOPOs: further provision as respects Scotland

(1) A chief constable may apply for an order under this section in respect of a person who he believes is in, or is intending to come to, the area of his police force if it appears to the chief constable that-

(a)   the person has been convicted of, found not guilty by reason of insanity of or found to be under a disability and to have done the act charged against him in respect of-

(i)         an offence listed in paragraph 60 of Schedule 3; or

(ii)       before the commencement of this Part, an offence in Scotland other than is mentioned in paragraphs 36 to 59 of that Schedule if the chief constable considers that had the conviction or finding been after such commencement it is likely that a determination such as is mentioned in paragraph 60 would have been made in relation to the offence; and

(b)   the person has since the conviction or finding acted in such a way as to give reasonable cause to believe that it is necessary for such an order to be made.

(2) An application under subsection (1) may be made by summary application to a sheriff-

(aa) within whose sheriffdom the person in respect of whom the order is sought resides;

(ab) within whose sheriffdom the person is believe by the applicant to be;

(ac) whose sheriffdom the person is believed by the applicant to be intending to come;

(b)  within whose sheriffdom lies any place where it is alleged that the person acted in a way mentioned in subsection (1)(b)"

 

"109 Interim SOPOs

(1) This section applies where an application under section 104(5) or 105(1) ("the main application") has not been determined.

(2) An application for an order under this section ("an interim sexual offences prevention order")-

(a)   may be made by the complaint by which the main application is made, or

(b)   if the main application has been made, may be made by the person who has made that application, by complaint to the court to which that application has been made.

(3) The court may, if it considers it just to do so, make an interim sexual offences prevention order, prohibiting the defendant from doing anything described in the order.

(4) Such an order -

(a)   has effect only for a fixed period, specified in the order;

(b)   ceases to have effect, if it has not already done so, on the determination of the main application."

 

"111 Appeals in relation to SOPOs and interim SOPOs: Scotland

In Scotland-

(a) an interlocutor granting, a sexual offences prevention order on an application under section 104(5) or 105(1) or interim sexual offences prevention order or refusing, varying, renewing or discharging either such order is an appealable interlocutor;

(b) where an appeal is taken against an interlocutor so granting, varying or renewing such an order the order shall, without prejudice to any power of the court to vary or recall it, continue to have effect pending the disposal of the appeal."

 

"112 Sections 104 and 106 to 109: Scotland

(1) Sections 104 and 106 to 109 apply to Scotland with the following modifications-

(c)    references to a chief officer of police and to his police area are to be read, respectively, as references to the chief constable of the Police Service of Scotland and to Scotland;

(d)   references to the defendant are to be read as references to the person in respect of whom the order is sought or has effect;

(da) a court may make an order under section 104(1)-

(i)         at its own instance, or

(ii)       on the motion of the prosecutor;

(e)    an application for a sexual offences prevention order ...is made by summary application to any sheriff within...

(ia) within whose sheriffdom the person in respect of whom the order is sought resides;

(ib) within whose sheriffdom that person is believed by the applicant to be;

(ic) to whose sheriffdom that person is believed by the applicant to be intending to come; or

(iii)      within whose sheriffdom lies any place where it is alleged that that person acted in a way mentioned in subsection (5)(b) of section 104,

(and, in relation to such an order, references to a court or the court shall be construed accordingly);

(ea) an application for an interim sexual offences prevention order-

(i)         is made by way of the main application; or

(ii)       if the main application has been made, is made, by application to a sheriff for the sheriffdom of the sheriff to whom the main application was made, by the person who made that application,

(and, in relation to such an order, references to a court or the court shall be construed accordingly);

(f)    an application for the variation, renewal or discharge of a sexual offences prevention order which was made on an application under section 104(5) or 105(1) or an interim sexual offences prevention order is made by summary application to the sheriff who made the order or to a sheriff-

(i)         within whose sheriffdom the person subject to the order resides;

(iia) within whose sheriffdom that person is believed by the applicant to be; or

(iib) to whose sheriffdom that person is believed by the applicant to be intending to come,

(and, in relation to an application made by virtue of this paragraph, references to a court or the court shall be construed accordingly."

 

Appellant's Submissions

10.               Mr Sheldon for the appellant confirmed that the appeal deals solely with interpretation of the 2003 Act. He reminded me that the appellant had responsibility for public safety and for identifying sex offenders who may pose a risk to the public. The fundamental purpose of a SOPO is to protect the public from harm. That purpose would not be served if interim SOPOs were not properly or validly granted. Such orders could be subject to challenge and the appellant and those advising the appellant consider that the court orders purportedly continuing the interim SOPOs are incompetent. Therefore if open to challenge there is fear and concern that the interests of the public and vulnerable individuals in particular are not protected.

 

11.               Mr Sheldon turned to consider the Sexual Offences Act 2003, a UK statute, dealing inter alia with provisions for protection of the public regarding notification and other orders in England and Wales. The terminology of the Act is often obscure as the principal provisions in Part II relate to England and Wales. Nevertheless there are Scottish versions of the relevant sections on Westlaw and in particular section 112 makes modifications for the application of Part II in Scotland.

 

12.               By virtue of section 109 the process for applying for interim SOPO is set out. The reference to "the complaint" may be confusing in Scotland as that appears relate to an English procedure albeit it is competent to apply for a SOPO by application in criminal proceedings and also by virtue of the civil proceedings set out in Part II of the 2003 Act. In particular section 109(4) states that an interim SOPO has effect only for a fixed period, specified in the order and ceases to have effect (if it has not already done so) on the determination of the main application. Section 112 sets out the modifications for Scotland. Of interest in this section is sub-section 1(e), (ea) & (f). Bearing in mind that an interim SOPO is only for a fixed period then the provisions of section 112(1)(ea) apply and section 112(1)(f) similarly apply to any application for the variation renewal or discharge of a SOPO or an interim SOPO which is to be made by summary application to the sheriff who made the order or to another sheriff depending on the circumstances all as set out in that provision. Thus any application for renewal of an interim SOPO must be made by summary application and it was argued by separate summary application (separate from the "main application").

 

13.               I was informed that there has been a variable approach to the interpretation of these provisions across Scotland but that most sheriffs have accepted the view advanced on behalf of the Chief Constable for Scotland. I was specifically referred to the approach taken by a Sheriff within this Sheriffdom who accepted that a new application was required before an interim order could be renewed or varied but that new application would have the same court reference as the main or original application. The interpretation urged on me by counsel for the appellant may lead to an increased burden on the court but it was submitted that the legislation clearly pointed in that direction. Although the drafting of the Act was less than clear and helpful nevertheless the wording appears to have been chosen deliberately and the legislation and notes attached pointed to the interim SOPO being only for a fixed and determined period requiring thereafter a renewal by separate summary application. I was therefore urged to allow the appeal remitting the matter back to the sheriff in Selkirk for further procedure.

 

Respondents' Submissions

Submission on behalf of the First Respondent

14.               Mr Frazer for the first respondent associated himself with the comments made by the learned sheriff in his note and asked me to refuse the appeal on the basis that the interpretation of the statute argued for on behalf of the appellant was flawed. It failed to take account of the nature of interim orders as being ancillary to the main crave and failed to have regard to summary application procedure. The purpose of summary application procedure, of course, being to allow the sheriff to deal with business expeditiously. The first named respondent had no issue with the purpose of the order and that being the protection of the public. He did not challenge in principle the making of an interim order at the outset.

 

15.               Mr Frazer pointed out that complexity in procedure would result from the interpretation sought by the appellant. It was wholly unnecessary and wrong to interpret section 112(1)(f) in the manner proposed namely, that a separate summary application would be required for each and every continuation. In effect the appellant was equating continuation with a renewal. There was a distinction to be drawn between a renewal and a continuation in any event. Mr Frazer referred to the definition from the shorter Oxford Dictionary. To "renew" would be to "make new again" or "grant anew". The process of continuations granted by the sheriff in the main application was in accordance with the legislation bearing in mind the nature of an interim order. An interim SOPO is another form of interim protective order and given the nature of the order it was important that the courts avoided complexity and unnecessary procedural steps. Such complexity would prejudice a defender in the situation of his client. Accordingly, Mr Frazer's prime submission was to the effect that the interpretation placed on the legislation by the appellant was wrong. There was no requirement that there be only one single fixed period and a continuation of a SOPO did not require a separate application bearing in mind the nature of summary application procedure. In any event his subsidiary proposition was that there is a distinction between a continuation and renewal. Continuation of an interim order does not constitute a renewal and therefore section 112(f) did not apply. I was urged to look at the nature of the legislation and the nature of the order sought in these applications and to construe the legislative provisions accordingly.

 

Submissions for the Second Respondent

16.               Mr McDonald urged me to adhere to the sheriff's interlocutor of 27 June 2013 and refuse the appeal. He accepted the submissions made on behalf of the first named respondent and adopted them. Mr McDonald pointed out that the decision complained about related to a second or supplementary initial writ which commenced a summary application. In that writ there was no crave for a full SOPO, the crave was solely to renew the interim SOPO granted in Edinburgh in January 2013.

 

17.               Contrary to Mr Sheldon's argument Mr McDonald submitted that to accept the reasoning urged on the court on behalf of the appellant would simply lead to a multiplicity of orders. According to Mr McDonald not only would there be a multiplicity of procedure and orders, but there would also be an absurdity that the same set of factual averments would be repeated time and again. It would lead to procedural chaos with the possibility of conjunction of processes.

 

18.               It was no coincidence that Parliament had chosen to require applications to be made by way of summary applications. I was referred to Macphail Chapter 26 which summarises and emphasises the summary and flexible nature of the procedure. Applications to the sheriff may be by oral or written application.

 

19.               To allow the interpretation sought on behalf of the appellant would amount to condoning oppressive behaviour particularly towards the respondent/defender. A SOPO has been described as a draconian order and it is certainly an order with draconian effect if breached. It restricts the activities of an individual. In these circumstances any order which prohibits an individual from behaving in a certain way must be clear, certain and capable of being understood. In that regard it is similar to an interim interdict. The approach of the appellant was far too narrow and overlooks the overall purpose of the Act and procedure. The procedure under section 109 to obtain an interim SOPO is subordinate to the section 104 procedure or main application. Mr McDonald pointed out that there is a different test for the making of a SOPO compared with an interim SOPO. The court must follow the necessity test under section 104 for the making of a SOPO whereas the requirement for an interim order would be that it is "just" for an interim SOPO to be in place. Such interim orders are often made following ex parte statements to the court and therefore that explains why the order should be for a fixed period for certainty and clarity. However, the legislation does not prohibit further set periods subject to an interim SOPO falling once the main application is determined. Accordingly, I should refuse these appeals and adhere to the interlocutor of the sheriff dismissing the second application.

 

Decision

20.               A SOPO or Sexual Offences Prevention Order is a creature of statute - the Sexual Offences Act 2003 ("The 2003 Act") an Act of the UK Parliament. The Act is vast and is in three parts. Part I applies only to England and Wales (and to an extent Northern Ireland) and deals with consolidation and reform of the provisions as to sexual offences in these jurisdictions. In Scotland the Sexual Offences (Scotland) Act was enacted by the Scottish Parliament in 2009 and deals similarly with sexual offences. Part II of the Act, with which this appeal is concerned, makes provision for protecting the public from sexual harm. In particular the Sex Offenders Act 1997 has been re-enacted in this part with notification requirements. Sections 104 to 113 deal with Sexual Offences Prevention Orders (SOPOs).

 

21.               These sections largely follow English court procedure and the modifications for Scotland do not sit entirely happily with our civil procedure. The wording can be seen to be clumsy. For example, section 112(1)(ea) provides the manner in which the application can be made either by way of the main application or:

"(ii) If the main application has been made, is made, by application to a sheriff for the Sheriffdom of the sheriff to whom the main application was made by the person who made that application."

 

22.               It must, of course, be remembered that an application for a SOPO can be made to a sheriff sitting in the criminal court following conviction for a relevant listed offence or by way of application to the sheriff sitting in his or her civil jurisdiction. What is entirely clear is that Parliament decided that the vehicle or type of procedure to be used in such civil applications in Scotland is summary application procedure. This appeal is concerned with such procedure.

 

23.               SOPOs are intended to protect the public from the risk posed by sex offenders by placing restrictions on their behaviour. In either form they are serious measures which are both coercive and prohibitive (section 111A of the Act). The consequences of breaching a SOPO or interim SOPO, without reasonable excuse, is a criminal offence which may give rise to a substantial period of imprisonment (up to five years). Accordingly, care is required not only to assess the risk posed by the offender, but particularly to apply the test for the grant of such orders. The court must be satisfied that an order is necessary to protect the public or any particular members of the public, from serious sexual harm (section 104(1) and 105 of the 2033 Act). This appeal, however, is not concerned with the merits and whether these statutory tests may be met.

 

24.               In Scotland the appellant, the Chief Constable of the Police Service of Scotland is the applicant in such proceedings. The appellant, accordingly, has overall responsibility for assessing the risk posed by offenders with a view to protecting the public from harm including the risk of serious sexual harm. This is a very important responsibility.

 

25.               Section 109 of the Act deals with interim SOPOs. Sub-section 2 deals with English procedure. However, the test for the grant of such an order is found in sub-section 3 - "the court may, if it considers it just to do so make an interim SOPO, prohibiting the defendant from doing anything described in the order."

 

26.               Sub-section 4 of the same section and therefore referring to interim SOPOs states:

"4 Such an order -

(a)   Has effect only for a fixed period, specified in the order;

(b)   Ceases to have effect, if it has not already done so, on the determination of the main application."

 

Considerable reliance was placed on this subsection by counsel for the appellant in support of his argument that in the event the court decides to make an interim SOPO such an order will only have effect for one fixed period all as specified in the order.

 

27.               The English provision for renewal of an interim SOPO can be found at section 109(6). The modification for Scottish procedure can be found at section 112(f) which provides that an application for the variation, renewal or discharge of an interim SOPO is made by summary application to the sheriff who made the order or to another sheriff depending on circumstances. In other words it was the appellant's submission that due to the terms of section 109(4) read together with section 112(1)(f) the only way this could be interpreted was that a separate application was required to secure the continuation or renewal of an interim SOPO. It was therefore not competent to continue the interim SOPO in the main application after the end of the first fixed period as the sheriff had purportedly done.

 

28.               In my view, the key to interpreting the provisions of the 2003 Act with regard to interim SOPOs is to look not only at the context and the purpose of the statute but also the purpose and effect of interim protective orders. The secondary approach to interpreting the statute is an appreciation of the quintessentially Scottish summary application procedure. The procedure is used in the civil courts for both common law and statutory appeals and other applications such as guardianship orders; proceeds of crime and football banning orders together with applications in respect of SOPOs. An understanding of that procedure will also shed light on the provisions which are under scrutiny. Accordingly, in common with other interim protective measures which the sheriff deals with in civil jurisdiction there is an imperative that such orders be clear, proportionate, precise, understandable and above all enforceable. The constituency of defenders in these applications will ipso facto be offenders who are either sex offenders or people who have committed offences with a substantial sexual element. It is impossible to characterise these defenders but they will range from dangerous and devious, manipulative and predatory sex offenders to the chaotic, mentally disturbed and feckless who appear in the criminal courts. Many will have learning difficulties or limited education. Thus such orders need to be carefully drafted, clear, capable of being complied with and intelligible. In R v Hemsley [2010] EWCA CRIM 225 the court stated:

"We also consider that it is essential, bearing in mind that a breach of a SOPO is a criminal offence carrying a maximum sentence of five years imprisonment by virtue of section 113(2) of the Sexual Offences Act 2003, that such orders are clear on their face, capable of being complied with by the subject thereof without unreasonable difficulty and/or the assistance of a third party and free of the real risk of unintentional breach. Such orders need to be carefully drafted and bearing in mind that, although not the case in this instance, they are often made against those of limited education, simplicity is a virtue".

 

I echo these comments but would add that simplicity is not only a virtue in the drafting but also in the process or procedure to be adopted.

 

29.               I now turn to "summary application" procedure which has the benefits of both simplicity and flexibility. The key to the procedure is in the title it is "summary".

"Summary application "means and includes all applications of a summary nature brought under the common law jurisdiction of the sheriff principal and all applications, whether by appeal or otherwise, brought under any Act of Parliament which provides, or, according to any practice in the sheriff court, which allows that the same shall be disposed of in a summary manner, but which does not more particularly define in what form it shall be heard, tried and determined;"

 

(Sheriff Courts (Scotland) Act 1907 section 3(p)). Unlike ordinary procedure it does not rely on the defender either timeously returning forms to the court such as a notice of intention to defend or instructing a solicitor. Instead the defender represented or unrepresented can appear in court on the date given in the warrant. The advantage of summary application procedure is that it is less formal than ordinary cause procedure. In ordinary cause procedure the court does not set a hearing date unless a notice of intention to defend is lodged whereas in summary application procedure the case will call in court whether defended or not. The core flexibility of the procedure lies in the Summary Application Rules 1999. Rule 2.31 states: "The sheriff may make such order as he thinks fit for the progress of a summary application in so far as it is not inconsistent with section 50 of the Sheriff Courts (Scotland) Act 1907.". Separately, particular rules are promulgated and the rules with regard to the Sexual Offences Act 2003 can be found in Part XXV of the rules in particular, Rule 3.25.7. The procedure allows the sheriff to deal with matters as expeditiously as the administration of justice will allow with the minimum of form or rules. (Macphail: Sheriff Court Practice Chapter 26.01). Had Parliament considered it necessary to lay down prescriptive rules or procedures either another form of procedure would have been adopted or a set of specific rules or statutory requirements would be expected. Parliament clearly selected summary application procedure as being apt for the determination of application for SOPOs. It has the clear advantage of being the procedure most suited to meeting the need to ensure that the defender understands; attends court and has the opportunity to state a case.

 

30.               Turning back to the legislation and the provisions relating to interim SOPOs in particular, the terms of section 109(4) do not specify or regulate that the interim SOPO will only be effective for one single fixed period. The period of an interim SOPO must be fixed rather than indeterminate. Similarly there is no specific prohibition on continuation, albeit any interim SOPO must be for another fixed period. This is in line with the requirement for clarity and certainty. It is not difficult to understand why the duration of an order imposing an interim SOPO should be for a fixed or certain period. These orders will be granted or refused on ex parte statements which are untested. To grant such orders on that basis for open ended or indeterminate periods could be contrary to the interests of justice. Fixed periods require the interim order to remain under the court's review to ensure the continuation of the order remains appropriate and proportionate and to make sure that the need for expedition in determining any final orders is not lost sight of.

 

31.               Section 112(1)(f) deserves scrutiny. It deals with an application for variation, renewal or discharge of a SOPO (made in terms of section 104(5) or 105(1)) or an interim SOPO which is to be made by summary application to the sheriff who made the order.....Nothing in that provision directs that a separate summary application should be made; nothing in that provision derogates from the interim SOPO being ancillary to the main application for a SOPO. The interpretation urged on me by the appellant would lead to the requirement for separate and indeed potentially multiple applications by way of initial writ to a sheriff. It misunderstands entirely the essence of summary application procedure which commences by way of initial writ. The interim order craved is ancillary to the main application in the processes involving these respondents. Summary application procedure then invests in the sheriff the powers I have described especially rule 2.31 which allows the sheriff to make such orders as he considers fit for the progress of a summary application. Indeed, this procedure is sufficiently flexible to permit any number of applications to the sheriff in the same writ or process. Applications to the sheriff may be made by motion in the process.

 

32.               As I mentioned during the appeal hearing, the result contended for by the appellant would be counter intuitive and would achieve a multiplicity of actions and complexity in procedure when summary application procedure is apt to accommodate in one process the objectives of Parliament. Multiplicity of process and procedure is not only undesirable due to the burden it would impose on the appellant, the courts and the system of justice by inflicting unnecessary cost on the public purse; it would also cause confusion. That would disadvantage defenders given the serious nature of the order and the serious consequences which arise if the order is breached. The need for clarity and simplicity has already been observed. There is a difficult balance to be struck between the rights of the defender and the need to protect the public and the community in dealing with such applications. An offender subject to an order or interim order will suffer some interference with their Article 8 rights (Article 8 of ECHR - Right to Family and Private Life) necessary for the sake of the overall protection of the public. That being so, the courts should not imperil the fairness and integrity of the manner in which these applications are dealt with in the justice system by introducing complexity. This is exactly what would happen if the relevant statutory provisions were given the meaning which the appellant attributes to them. Serial applications are likely to lead to confusion. Repetitive pleadings in identical or similar terms increase the risk of misunderstanding and confusion. Separate applications will require separate applications to the Scottish Legal Aid Board for representation and will also lead to the potential for multiple court dates especially in larger courts. This could amount to oppression. It would be complicated. Thus the disadvantages of multiplicity of procedure are clear for all parties and the court. In my view, it is also undesirable as unnecessary cost and complexity diminishes public respect for our law and procedure. It would be difficult, if not impossible, to explain to ordinary people who are not lawyers why it is suggested that Parliament would require this extra procedure and expense with the consequential additional demands on court time and the risk to fairness. It is inconceivable that Parliament would demand it. In my view, the words of the statute do not mean what the appellant argues for. Separate applications are not required to continue or extend an interim SOPO.

 

33.               There are a number of subsidiary arguments raised both at the appeal hearing and in the note by the sheriff. The interpretation placed on the 2003 Act by the appellant has the effect of questioning the competency of the continuation of the interim SOPO in the main applications involving both respondents. The sheriff observes that the continuation of the interim SOPO was made of consent in April 2013 with a further continuation on 2 May unopposed. The appellant by virtue of this appeal challenges the competence of these continuations. Counsel for the appellant explained that the appellant continued the main application as the pursuer following the coming into force of the Police and Fire Reform (Scotland) Act 2012 on 1 April 2013. The appellant's view of the legislation caused him to be concerned that the previous continuations to the interim SOPOs may be incompetent and therefore challengeable. This point was not developed by the parties at the appeal. Nevertheless, it appears to me that the interests of justice and the integrity of the process would point to appeals being taken to both interlocutors pronounced by the sheriff on 27 June 2013 in both processes. I say this in view of the appellant's averments relating to competency in the main applications; the applications under appeal - not to mention the numerous subsequent writs which the appellant and his agents have sought to lodge in this court and the sheriff court at Selkirk. The terms of section 111(b) of the 2003 Act also point to this being the correct approach. However, these appeals lie solely against the sheriff's interlocutor of 27 June 2013 in the second application for renewal of the interim SOPO. This approach leaves a less than satisfactory outcome standing the appellant's averments and Ground 2 of the Notes of Appeal.

 

34.               The second point relates to the meaning of "renewal" and whether renewal is the same or a separate and distinct concept from "continuation". Counsel for both respondents drew a distinction between the two. The Dictionary definition of renewal or "to renew" is to restore, re-establish or bring back to use or existence. On the other hand a continuation or "to continue" operates to prolong, maintain or extend. It is precisely that - an extension or continuation which the orders in the main applications of 4 April, 2 May and 27 June achieve. These orders do not renew the interim SOPO. A renewal, appears to me, to be something quite distinct. It is the revival or restoration of something which may have ceased even temporarily. In the context of these applications it is not difficult to imagine circumstances where an interim SOPO may cease and not be continued. This could happen simply due to oversight on the part of agents failing to apply by motion to continue an interim SOPO or for example where an offender/defender is no longer at liberty in the community and is in custody for a determinate period. In these precise circumstances an interim SOPO may come to an end when the fixed period expires not be continued but there may be a need for "renewal" prior to the defender's expected release from custody. Therefore should I be wrong in my interpretation of the legislative provisions nevertheless the orders continuing the interim SOPO are competent being orders ancillary to the main application without the necessity of separate applications. However, in my opinion, the statutory provision (s.112(1)(f)) does not require a separate initial writ to commence a new application for "renewal". Summary application procedure does not require a separate writ to allow the court to deal with an application for renewal of an order made in the main application. The new applications with which this appeal is concerned could properly have been made by motion in the main application. I note however that the "new" summary applications (B28/13 and B97/13) did not commence by initial writ as the rules require.

 

35.               It follows that these appeals are refused. I was not addressed on the expenses of the appeal. I will assign a date for a hearing on expenses. In the meantime, as parties are all reliant on public funding, steps should be taken to agree the question of liability for the expenses of the appeal, if possible, to avoid a further hearing. Should agreement be reached the hearing may be cancelled and an interlocutor reflecting the parties agreement written.

 

36.               I have expressed concern as to the dangers of multiplicity of applications. I will repeat these concerns in the light of serial applications lodged in the sheriff courts both here in Edinburgh and at Selkirk in respect of these respondents pending the hearing of the appeal. The repeated requests to warrant these applications appear to attempt to circumvent the appellate process and the course of justice. This causes me disquiet. In my view, the orders of the sheriff made on 27 June 2013 are ex facie valid and enforceable interim orders. If the appellant considers them to be incompetently made, as clearly he does, standing the terms of Ground 2 of the Note of Appeal, the proper approach is to lodge an appeal against both interlocutors granted by the learned sheriff on 27 June. I recognise, however, that the grant of previous continuations of consent of the parties may have raised difficulties for the appellant.

 

37.               Finally, it follows from my decision in these appeals that the interim SOPOs granted by the sheriff in the main applications are properly and competently made in the exercise of his judgment in summary civil jurisdiction.

(signed) Mhairi M Stephen